Looking Back: Notable Cases Of 2013

2013 will undoubtedly be known as the year of the Jackson Reforms. The landscape has been dominated by the court demanding increasingly exacting standards of procedural compliance, in particular in relation to case management and costs budgeting and often with Draconian consequences.

Yet while attention has been focused on this higher profile procedural litigation, developments in the substantive law, although perhaps more subtle, should not be overlooked. In particular, the court's attitude towards certain substantive doctrines and long-standing principles in the law of contract appears by contrast to have relaxed over the course of 2013.

Yam Seng PTE Ltd v International Trade Corp Ltd [2013] EWHC 111 (QB)

In this case the court went against the grain of hundreds of years of contract law and the "traditional English hostility" towards the doctrine of good faith to recognise, firstly, a duty of good faith to perform contracts honestly and, secondly, general standards of fair dealing.

The court considered other legal systems, both common and civil, and legislation such as the Unfair Terms in Consumer Contracts Regulations 1999, to conclude that refusing to recognise a core value of honesty would be "swimming against the tide". It stopped short of finding a default duty implied by law into all commercial contracts but found a duty could be implied in fact based on the presumed intention of the parties.

Although it concerns the performance rather than negotiation of contracts, this decision nonetheless appears avant garde in the context of the court's historic reluctance to interfere in the freedom of commercial parties to strike their own bargains with one another.

Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35

The emphasis of the court was again on protecting the rights of the contracting parties - here to have their dispute resolved through arbitration and not to be sued. It found that where a valid arbitration agreement exists it has the power (s37 Senior Courts Act 1981) to grant an anti-suit injunction to prevent the continuation or commencement of proceedings in a jurisdiction outside the Brussels Regulation / Lugano Convention regime, including where proceedings are not yet even contemplated.

The court's deployment of arguably its most powerful tool on the basis of the paternalistic reasoning of protecting parties' contractual rights again represents a progressive approach, given its...